The Territorial Jurisdiction of the International Criminal Court.

Dutton, Yvonne

The Territorial Jurisdiction of the International Criminal Court. By Michail Vagias. Cambridge: Cambridge University Press, 2014.

The Rome Statute creating the International Criminal Court (ICC) provides that, in the absence of a UN Security Council referral, the court may exercise jurisdiction over genocide, crimes against humanity, and war crimes where the "conduct in question occurred" in the territory of a state party to the court (p. 79, quoting ICC Article 12(2)(a)). In his book, Michail Vagias argues for an expansive interpretation of this jurisdictional grant.

Specifically, the court can use its power to rule that the "conduct in question" requires that only some part of the crime be committed in the territory of a state party or produce effects in such territory (p. 85). For example, the court could find that it had jurisdiction over a case involving massacres committed in a state not a party to the court where there is a massive exodus of refugees to neighboring states that have joined the ICC (pp. 162-- 63). Vagias's argument for a broad interpretation of the statutory language is legally compelling. He supports it with an exhaustive analysis that includes detailing the Rome Statute's drafting history and the principles of treaty interpretation, both of which he demonstrates should not bar his proposed interpretation. Further, Vagias explains that, in the antitrust context, courts in the United States and elsewhere have used the "effects doctrine" to permit them to exercise jurisdiction over conduct that occurs abroad but produces effects within the state's territory (p. 24). From a moral standpoint, Vagias submits that extending the ICC's jurisdictional reach to include the effects of atrocities is more justified than extending the jurisdictional reach of courts adjudicating economic crimes (p. 205). To his credit, Vagias notes that the court itself may not be willing to advance novel arguments to support a broader jurisdictional reach (p. 207). Indeed, the ICC may have many reasons to believe that it will be most effective if it confines itself at present to addressing those cases that clearly occur in the territory of states parties who by joining the court have agreed to submit to its jurisdiction. After all, even with the Security Council referral of the Darfur case, the ICC has not been able to execute its arrest warrant for President Omar al-Bashir. Reviewed by Yvonne Dutton